Tuesday, August 20, 2013

Privacy under attack? Stop-and-frisk vs. NSA surveillance

As Americans, we each have a guaranteed right to privacy. The
online legal site FindLaw explains it this way: “The Fourth Amendment to the
U.S. Constitution protects personal privacy, and every citizen's right to be
free from unreasonable government intrusion into their persons, homes,
businesses, and property – whether through police stops of citizens on the
street, arrests, or searches of homes and businesses.”

That seems plain enough, but how one interprets the word
“unreasonable” provides ample opportunity for mischief, as well as for good law
enforcement.

As for good law enforcement, New York City Mayor Michael
Bloomberg has credited the City’s stop-and-frisk policy with helping drive
crime to record lows since the policing policy was implemented in 1994, with
the murder rate falling by an astounding 82 percent by 2009.

New York’s stop-and-frisk policy seeks to prevent crime
before it happens by deploying officers with pinpoint precision to critical
street segments in high-crime areas where they interact with individuals
displaying suspicious behavior: they approach, question, and sometimes frisk
the individuals. That practice has led to fewer people, such as members of
street gangs, risking arrest by carrying a weapon on their person, and with
fewer gang bangers carrying weapons, there are fewer spur-of-the-moment
shootings in New York, and correspondingly fewer deaths.

You might think that, given the obvious level of success in
reducing the murder rate in the Big Apple, such a policy would fall outside the
Fourth Amendment’s proscription against “unreasonable” searches. But you would
be wrong, according to U.S. District Judge Shira Scheindlin, who believes that
the policy indeed does violate the Fourth Amendment protection.

Mayor Bloomberg believes that the judge's decision will
cause a reduction in the use of stop-and-frisk, which would reverse crime
reductions and make his city a more dangerous place. And data indicates he is correct.
In 2011, guns were used in 61 percent of all homicides, but in black
neighborhoods 86 percent of young black males died from gunfire. Stop-and-frisk
reduced the total number of deaths by reducing the number of guns on the
streets.

The challenge to the policy arose because officers stop
minority residents at a rate disproportionate to their number in the general population.
But those stops are not disproportionate to the minority resident population in
the crime-ridden neighborhoods or disproportionate to the number of crimes minorities
commit in those neighborhoods.

As we have seen recently, there is the possibility that authorities
may lose perspective and become abusive in the use of policies like this one, but
supervisors are charged to competently manage their operation. And due to the depths
of its crime problem when the policy was implemented, New York police applied stop-and-frisk
more aggressively than other cities. But whether or not the City is too
aggressive ought not be decided without considering its unique circumstances
and surprising rate of success in reducing murders.

An opposite approach to systematically and thoughtfully
targeting areas where crimes mostly occur and populations that most often
commit them like New York City is doing is the blanket, indiscriminate, suspicion-less
spying on telephone, email and other private communications and activities of
millions of Americans by the National Security Agency.

The government’s spying on Americans is so egregious – eavesdroppers
broke privacy rules or overstepped their legal authority
thousands of times every year – it’s no wonder the administration wants to
arrest and try Edward Snowden for making the information about its spying
public.

Where New York police might appear to have been over-aggressive
in implementing stop-and-frisk, the federal government’s policy itself is over-aggressive
by design. Surely, observers familiar with the Fourth Amendment’s restrictions
on searches would be unable to conclude anything other than that NSA spying is
precisely why there is a Fourth Amendment.

As reported in The
Washington Times, “A Top Secret internal NSA audit,
leaked by Mr. Snowden to
freelance journalist Barton Gellman earlier this summer and
published online by The
Washington Post Thursday night shows that, in the 12 months prior to
May 2012, there were 2,776 incidents of ‘unauthorized collection, storage,
access to or distribution of legally protected communications’ — those between
Americans or foreigners legally in the United States.”

“Most were unintended,” according to The Post. “Many involved failures of due diligence or violations of
standard operating procedure.” Even if the problems were unintended, sloppiness
certainly is no excuse: The infringements are no less wrong, no less a breach
of individual privacy, and no less intolerable.

The larger the scope of a program, the greater the chance
that something will go wrong, and the more opportunities there are for something
to go wrong. Congressman Peter King (R-NY) defends the program, saying that the
situation is being blown out of proportion, that the rate of error is miniscule.

Maybe so; however, since the NSA program seeks to find a few
fake grains of sand on a beach, and involves millions upon millions of records.
For every million records, ten thousand mistakes can be made, affecting the
privacy of ten thousand Americans, and the success rate is 99 percent.

Even if such gargantuan programs are run efficiently and
competently, they are examples of unjustified government excess, and should not
be allowed.

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